Dobbs and Bruen were in tension. In Dobbs, the conservatives said that the people should decide the abortion question, while the progressives said the courts should decide the abortion question. In Bruen, the conservatives said the courts should decide the gun question, while the progressives said the people should decide the gun question. As Justice Sutton asks us, who should decide? Deep down, I hoped that Justice Breyer would be consistent on both questions: let the people decide on guns and on abortion. Such a vote pairing would have been a momentous capstone for his democratic (lowercase "d") philosophy. But, instead Breyer followed his Democratic (capital "D") philosophy. Breyer was so intent on saving Roe that he could not practice what he preaches: making our democracy work.
In the wake of Dobbs, we are already seeing the democratic process at work. And critically, legislatures in red states are forced to confront issues they simply never had to decide before. The absence of Roe is requiring elected representatives to cast difficult votes on abortion. The New York Times distills the process with the headline: "With Roe Gone, Republicans Quarrel Over How Far to Push Abortion Bans." Read through the article. At every juncture, I see government in action.
Abortion opponents, especially in conservative states, had hoped to swiftly pass a new wave of restrictions after Roe v. Wade was overturned. But so far, most Republican lawmakers have moved cautiously or done nothing at all, even in statehouses where they hold overwhelming majorities. A debate playing out in Indiana this week is showing why. Though Republican legislators support the broad idea of restricting abortion, they have clashing views on how far to go. Should there be an outright ban? If so, should there be exceptions for rape and incest? And what if a woman's health is threatened by a pregnancy but doctors do not believe she will die?
